ATTORNEY GENERAL v. IP CHUNG HANG

Headnote

Appropriate sentencing considerations in cases of rape

BETWEEN

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J U D G M E N T

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1. This is the judgment of the Court.

2. On the 2nd May 1988 the respondent was convicted by Barnes J. and a jury of one count of common assault, four counts of rape and one of forcible detention. He had earlier pleaded guilty to counts of theft and blackmail.

3. Sentences ranging from one month for the assault to 6 years' imprisonment for rape were imposed, all sentences however to be concurrent, making a total of 6 years. By leave of the Chief Justice the Attorney General now seeks a review of those sentences on the general grounds that they are both wrong in principle and are manifestly inadequate. The respondent is represented, as he was at the trial, by Mr. John Mullick; Mr. I.G. Cross and Mr. W.S. Cheung appear for the Attorney.

4. The events which gave rise to these charges are as follows:

The victim, a Miss Ho, who on her own admission had been living as a prostitute but was only 15½ years of age at the time, had been the girl-friend of a co-accused, Chet Man-keung (D.1). She met him, in the street on the 20th October 1987, he being accompanied by another accused, Ip Caun-lun (D.2) and she was taken co the Luen Bong Billiard Hall together with a boy Lo Siu-Kwok. The respondent was at the billiard hall. Lo soon left, after allegedly being assaulted, and the respondent then punched Miss Lo so that she fell down. He then kicked her in the back twice. She stood up but was again knocked down and again kicked. However another boy, "Ah Hung" then intervened and he respondent ceased the assault. The respondent was convicted of common assault on those facts (Count 2).

5. This, on Miss Ho's evidence, was a serious and cowardly assault but in passing sentence the judge said he thought she may have exaggerated the extent of her injuries.

6. It is clear that the reason for this assault was that the respondent, and no doubt the other accused, wanted the "separation money" which is such a common feature of Triad related activities.

7. After file assault the respondent took Miss Ho's wallet from her and removed $540, some of which he gave to D1 He also took her ring. This forms the basis for the theft charge, to which the respondent pleaded guilty, and it is perhaps a little surprising that he did not face a charge of robbery (Count 3).

8. After the money and the ring was taken Miss Ho was then forced by threats of further violence to sign 3 IOUs, totalling $50,000. The violence, according to her, included threats to burn her with a cigarette. Miss Ho complained that she could not pay $50,000 and she was then cold by the respondent that she could earn enough as a prostitute to do so. Needless to say the IOUs were completely false and no loans had ever been made to Miss Ho. The respondent pleaded guilty to a charge of blackmail on those facts (Count 4).

9. Following the signing of the IOUs the respondent: took Miss Ho into a sauna which adjoined a gymnasium which was in turn part of the billiard hall. He told her to undress and when she did not threatened she would be assaulted if she did not do so. She then undressed, as did the respondent. She was told to lean against a bench and was then raped by the respondent. That is the basis of the first charge of rape (Count 5).

10. The respondent then left the sauna but soon returned with Ah Hung. In the presence of Ah Hung he raped Miss Ho again and then told Ah Hung also to have intercourse with her. Ah Hung undressed and did so, without Miss Ho's consent. These facts form the basis of the 2nd and 3rd charges of rape (Counts 6 and 7).

11. Miss Ho was then detained in the billiard hall until late at night. In the very early hours of the 21st October she was taken by a group of some 6 men, including the respondent, to the home of one "Fu Lo" which was nearby. She was taken into a room by Fu Lo, stripped and raped. He then opened the door and the others came in and, apart from one of them they all raped Miss Ho in turn. She offered no resistance as she was, understandably, frightened of being again assaulted. That incident relates to the fourth rape charge (Count 9).

12. Finally there was a charge (Count 15) of forcible detention of Miss Ho with intent to obtain a ransom for her release. This was based on her evidence that while she was detained in the billiard hall and gymnasium she was forced by threats of assault from the respondent to make several phone calls seeking money for her release.

13. These included ones to a friend called Siu Ka-chun who said he would lend her $2,000, which the respondent agreed to accept.

14. The respondent was sentenced as follows:

Count 2 (assault) 1 conch

Count 3 (theft) 3 months

Count 4 (blackmail) 18 months

Counts 5, 6 and 7 (rape) 4 years on each count

Count 9 (rape) 6 years

Count 15 (forcible detention) 6 months.

All sentences were, however, ordered to be served concurrently.

15. Mr Cross, who has argued this matter in his customary lucid and economical manner, suggest that Counts 2, 3 and 4 may be considered one series of actions designed to overcome Miss Ho's willpower by an assault so she would agree to sign the IOUs and whatever money and valuables she had on her at the time were also taken from her.

16. The first 3 charges of rape (Counts 5-7), all committed in the sauna within a short space of time, could also be considered as part of an effort so to degrade Miss Ho and lower her self-esteem that she would work as a prostitute to repay the IOUs which she had signed and were held by the respondent. Count 9, the gang rape in Fu Lo's home, was however a totally different offence. Each of the first 2 groups and Count 9 are quite distinct and separate offences and should have attracted sentences which were either totally or partially consecutive.

17. So far as the forcible detention count is concerned Mr. Cross submitted that in view of the horrendous manner with which Miss Ho was treated over a long period of time, a sentence of 6 months concurrent was wrong in principle in that it should have been consecutive, in part at least, and that it was also in itself manifestly inadequate to reflect the facts of the case.

18. For the respondent Mr. Mullick submitted that this was a series of related events - an attempt to obtain money from Miss Ho's earnings. She was already a prostitute and of bad character even though only 15½. No more violence was used than was requited to commit the rapes and the trial judge said in passing sentence for the assault that he thought she had exaggerated her injuries. The main factor; however; in mitigation was the respondent's youth. He was only 18 when the offences were committed and 19 when sentenced. For such a young man he submitted the question of his rehabilitation must be an important factor in sentencing and a very long term of imprisonment would be adverse to such rehabilitation.

19. The respondent is single and lived with his family in Ngau Tau Kok. He is the youngest of 4 children, his brothers and sister, all of whom have been successful, being quite a lot older. He was put on probation in 1983 for burglary, and was sent to the Detention Centre in 1984 for robbery. Although he has not been convicted of the offence, he admitted to the Police that he was a Triad member.

20. In passing sentence the trial judge said in relation to the rape charges that he thought a total of 10 years would have been correct but he reduced that because of what this Court said in R. v Tse Chi-fai and another⁽¹⁾. There a girl of 14½ was raped twice and assaulted in order to force her into Prostitution.

21. Tse Chi-fai was aged 18 and his total sentence was reduced from 11 to 7 years. Briggs C.J. said that there was less violence than usual and the victim was, to some extent, the authoress of her own misfortune in that she went with the defendants to a hillside knowing "that some illegality was afoot" though she did not know what they were going to do to her. That factor has however been now expressly held not to be mitigating in R. v Billam⁽2). There Lord Lane C.J. set out some very helpful guidelines on sentences for rape. He said at p.987 -

"    For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together,or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.

    At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime on a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years or more may be appropriate."

He went on at p.988 -

"    The crime should in any event be treated as aggravated by any of the following factors: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect on the victim, whether physical or mental, is of special seriousness. Where any one or more of these aggravating features are present; the sentence should be substantially higher than the figure suggested as the stating point

    The extra distress which giving evidence can cause to a victim means that a plea of guilty perhaps more so than in other cases; should normally result in some reduction from what would otherwise be the appropriate sentence. The amount of such reduction will of course depend on all the circumstances, including the likelihood of a finding of not guilty had the matter been contested.

    The fact that the victim may be considered to have exposed herself to danger by acting imprudently (for instance by accepting a lift in a car from, a stranger) is not a mitigating factors and the victim's previous sexual experience is equally irrelevant. But if the victim has behaved in a manner which was calculated to lead the defendant to believe that she would consent to sexual intercourse, then there should be some mitigation of the sentence, Previous good character is of only minor relevance.

    The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage. But, as is illustrated by one of the cases now before the court attempted nay be made by aggravating features into an offence even more serious than some examples of the full offence."

Here, even if it was relevant and we consider we should follow the more recent authority of Billam⁽2) rather than Tse Chi Fai⁽¹⁾, we do not consider Miss Ho was in any way the authoress of her own misfortune. Lord Lane in Billam⁽²⁾ set out that a victim's previous sexual experience is not relevant though we have some doubts as to whether drat would extend to a prostitute on whom the traumatic effect of this sort of offence would normally be less. However we would not consider in the circumstances of this case to be a strong mitigating factor bearing in mind in particular her age.

22. It is urged that no great amount of violence , or a weapon was used, or threat made to disfigure her (she was threatened by the respondent with a cigarette but that seems to have been to force her to sign the IOUs). Other factors in mitigation are that the respondent is relatively young and there is no evidence of any permanent harm to Miss Ho. There are, however, several aggravating features about these offences. They were repeated, they were done by a group of men, the respondent has a conviction for robbery, a crime involving violence and the rapes seem to have been premeditated. They were carried out partially at any rate, so as to degrade the victim, a girl of 15½, and make her amenable to demands for very large sums of money, there being only one way she could get such amounts.

23. The respondent was 18 at the time, of the offences. Youth is a mitigating factor but here very clearly, as the - vial judge found; he was the leader of this gang. Miss Ho said of one stage one of the ocher defendants had "his permission" to assault her if she refused to have intercourse with him. He is clearly a very mature young man in every way.

24. The most recent authority in this Court for cases of gang rape (there were 3 men) is R. v Yau Wai Hung and another⁽³⁾ There the defendants were aged 21 and 26 and the victims 13 years 10 months and 16 years. Sentences of 12 and 10 years were reduced to 10 and 8 years. The facts are not fully set out in the decision except that it was a gang ape "but not of the worst kind". We consider however that that decision supercedes Tse Chi Fai⁽¹⁾ as to the level of sentences for offences of this sort.

25. We turn now to the question of whether the sentences should have been concurrent or consecutive, bearing in mind the power under Section 68 of the Criminal Procedure Ordinance to make some partially consecutive. We agree that in principle the sentences for the rapes in the billiard hall sauna were rightly made concurrent but should have been consecutive to the sentences for the assault, theft and blackmail. If a robbery is committed and the victim is then the subject of further violence such as wounding or rape the sentences for such violence should be in addition to the robbery. We consider that the same principle should apply here. While clearly all the events of the 20-21st October were designed to get money from Miss Ho, the rapes were in addition to the assault, theft and blackmail. For the same reason we again consider that the sentence for the very bad gang rape in Fu Lo's home should in principle have been consecutive to all the other sentences. As for Count 15 this was an all-embracing charge and we see nothing wrong with that sentence being concurrent with all the others. The principles applicable to the question of consecutive or concurrent sentences have been fully set out in Attorney General v. Dominic Cheung⁽⁴⁾ and we do not need to repeat them here.

26. As to the level of sentence on the principles set out above we consider that the sentences for the assault, theft and blackmail were lenient but do not call for our intervention. The sentences for the two episodes of rape were, however, much too low. Taking into account the factors set out in Billam⁽²⁾ we consider the sentences for Counts 5, 6 and 7 should have been years. For Count 9, which was a gang of the worst sort, 12 years would have been proper.

27. We also agree that the entente of 6 months for forcible detention was also far too low and should have been one of 4 years.

28. This then would give a total sentence of 25 years and 6 months which is obviously much too long for a person of the respondent's age. Considering all the facts of these appallingly callous and repeated offences, the respondent's total lack of any sign of remorse and his record, but taking into account his age and the character of the victim we consider chat a total sentence of 12 years would have been correct.

29. It matters little as to the mechanics of going about achieving what is considered to be the correct total sentence. In this case, while we have said that in principle that some sentences should have been consecutive to each other the easiest way is to in fact order that all sentences should be concurrent. We stress however that this is only because of the "totality" principle.

30. This being an application for review we will make the usual discount to reflect that fact and reduce the sentences on Count 9 from twelve to ten years.

31. The application is therefore granted and the sentences for Counts 5, 6 and 7 are increased to 8 years that for Count 9 to 10 years and that for Count 15 to 4 years, all to be concurrent.

⁽¹⁾ Crim.App. 456/1976

⁽²⁾ [1986] 1 All E.R. at 985

⁽³⁾ Crim.App. 38/87

⁽⁴⁾ [1987] H.K.L.R. 788